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30 December 2015

United States: TSA Body Scan? Just Say 'No,' Leading Expert Says

Leading expert Rotenberg of EPIC:  Just say 'no' to body
scans.  Source:  Mandel Ngan/ AFP/ Getty Images
TSA Body Scan? Just Say 'No,' Leading Expert Says
by Lisa Brownlee, Contributor, Forbes, 
24 December 2015

Passengers required by the Transportation Security Administration (TSA) to submit to a body scan can legally refuse, according to Marc Rotenberg, President of the Electronic Privacy Information Center (EPIC).

EPIC v. The Department of Homeland Security (in the D.C. Circuit Court of Appeals, 2012) is the prevailing case establishing the law on the constitutionality of TSA security screening practices involving AIT (short for Advanced Imaging Technology) body scans and alternative pat-down procedures. Rotenberg was lead counsel on the case.

Legal right to refuse scan

Specifically, Rotenberg stated in writing that “ passengers have a legal right to refuse the AIT scan. The agency action is contrary to the earlier representations before the D.C. Circuit and to the holding in EPIC v DHS.”

He elaborated that “the last minute announcement by the TSA is troubling and appears contrary to the agency’s previous representations about the program and to the decision of the D.C. Circuit in EPIC v. DHS. In that case the DHS represented that the body scanner program was optional and that passenger could always elect to opt for a pat-down. The D.C. Circuit, relying on the government’s representation, concluded that there was therefore no Fourth Amendment violation, because as Judge (Douglas H.) Ginsburg explained for the court,

‘More telling, any passenger may opt-out of AIT screening in favor of a pat-down, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.’”

Background: the new procedures

On Friday, without notice, the Transportation Security Authority (TSA) implemented new procedures for airport security screening. TSA had been, until Friday, using a screening procedure that consisted of either an AIT body scan or a pat-down scan, at the passenger’s option. The legality (that is, constitutionality) of the security procedure encompassing a passenger’s option to choose an AIT scan or a pat-down scan was affirmed by the D.C. Court of Appeals in 2012, in the EPIC v DHS case mentioned above.

TSA’s new policy says it may direct mandatory screening

What is different in the new security procedures is that TSA made the body scans mandatory for some people. In its “Privacy Impact Assessment Update” released last Friday, TSA announced it was changing its operating protocol “regarding the ability of individuals to opt opt-out [sic] of AIT screening in favor of physical screening.”

TSA’s new policy states that passengers “may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers as warranted by security considerations in order to safeguard transportation security. “

TSA’s own lawyers have emphasized legal importance of optional pat-down

Jennifer Ellison and Marc Pilcher, attorneys in the TSA Office of Chief Counsel writing in “Advanced Imaging Technology (AIT) Deployment: Legal Challenges and Responses” emphasized the legal importance of pat-downs being a screening option.

The article specifically addresses the legality of the AIT body scans as enunciated by Judge Ginsburg in EPIC v. DHS. In discussing the legality of the AIT body scan program, TSA counsel wrote:

“Another consideration is whether passengers are afforded a choice in being screened. . . .the introduction of AIT–and the concomitant right to opt for the alternative of a pat-down–affords greater choice [than the prior scanning procedures], as it allows a passenger “to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.”

TSA’s own counsel has thus emphasized the importance of the pat-down option. Stated differently, TSA’s counsel has enunciated the importance of the non mandatory nature of the AIT body scan to the legality of TSA’s screening procedures.

Contrary to TSA’s statement in its new policy, TSA may not legally direct mandatory AIT screening for any passengers. Not according to EPIC, and not according to TSA’s own lawyers. EPIC v. DHS requires as a condition of a finding of constitutionality of the TSA screening procedures the ability of passengers to opt for pat-downs in lieu of AIT screening.

Story developing.

Lisa Brownlee is author of Intellectual Property Due Diligence in Corporate Transactions: Investment, Risk Assessment and Management, a cutting edge reference for conducting high tech deals.

http://www.forbes.com/sites/lisabrownlee/2015/12/24/tsa-body-scan-just-say-no-leading-expert-says/

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